Update on Immigration Executive Order (Part One of Two)

Update on Immigration Executive Order (Part One of Two)

On Wednesday, President Trump signed two additional executive orders that will lead to pronounced changes in the priorities and enforcement activities of Immigrations and Customs Enforcement. While we will discuss how these new orders may eventually affect our clients’ statuses and options, it is important to remember that many policies and initiatives such as these must be funded through the Committee on Appropriations prior to taking effect. As a result, the implementation of any such orders may be delayed by weeks or months, or even indefinitely (if Congress is not inclined to support the order).

One of the Executive Orders that was signed regards “Enhancing Public Safety in the Interior of the United States.” One of the most significant parts of this Order relates to the identification of enforcement priorities. For many years, immigration has targeted certain, specific types of cases for enforcement because the government simply does not have the resources to prosecute and deport all immigration violators. Generally, if immigration began proceedings against someone who did not fall into those specified priority categories, we could ask that the government exercise their prosecutorial discretion and indefinitely close the case or even choose not to pursue the case at all. Under this new Executive Order, the categories are quite broad, even going so far as to include individuals who “have been charged with any criminal offense, where such charge has not been resolved.” The other categories include those who have been convicted of criminal offenses, those who have committed acts that constitute a chargeable criminal offense, those who have made misrepresentations before government agencies, those who have abused public benefit programs, those with final orders of removal who have not departed the United States, and those who otherwise pose a risk to public safety or national security.

These categories are quite broad and it may take some time for us to see how they are enforced. While the Executive Order does call for the hiring of 10,000 additional immigration officers, this does not seem to take into account the limited bed space currently available in detention centers or the Immigration Judges’ dockets which may become even more backlogged. The Executive Order goes on to essentially encourage additional agreements to be made between the federal government and state and local law enforcement to allow the delegation of some immigration enforcement acts to state and local law enforcement officers. Additionally, the Order states that the Attorney General and Secretary shall ensure that Federal grants not be made available to sanctuary jurisdictions (“sanctuary cities”), where immigrants are not held after the posting of their criminal bonds to allow ICE to take custody of them. It is unknown at this time whether these sanctuary jurisdictions will continue their policies in light of this Executive Order. The Executive Order also limits the discretion that officers can use when processing immigrants who have been arrested (not convicted) for a criminal offense by the reinstitution of a program known as “Secured Communities.” The Order also calls for a weekly publication of criminal actions committed by aliens and jurisdictions that did not comply with ICE detainers. Due to the increased immigration enforcement and limited allowance for discretion, we expect to see an increase in removal proceedings before the Immigration Courts which will likely slow down how fast those cases can be completed.

The Executive Order also calls for increased criminal prosecutions for immigration violators, including those who do not cooperate with deportation orders. Most immigration violators are processed through administrative removal proceedings in front of the Immigration Courts where the result may be deportation, rather than being sent for prosecution by the United States Attorney where the result may be a prison sentence. The Executive Order appears to order increased criminal prosecutions, which will cause additional burden to the federal courts as well as the detention facilities where those convicted will serve their sentences. To briefly summarize and explain what impact we expect to see for our clients, the Executive Order demands increased immigration enforcement and essentially eliminates prosecutorial discretion. As we see the order in action, we will know more about what options we have available for our clients. Because enforcement may be more fervent, it is important to discuss potential options for adjustment of status, temporary protected status, changes/extension of status, waivers, etc. with one of our immigration attorneys before you are facing removal proceedings.

We are aware that there were additional executive orders that were leaked to news sources. While we have reviewed those documents, we are not discussing them in our blogs as we do not have any reliable information at this point to believe any of them will be signed or when they may be signed. We will certainly take into consideration the possibility of those orders being signed when giving individualized advice to our clients.

If you have any questions about how these orders affect you, please contact our office at (919) 828-5570 and schedule a consultation.